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In re Estate of Ostern

Court of Appeals of Illinois, Second District

November 20, 2014

In re ESTATE OF OLGA ATTERBURY OSTERN (Christopher Gerard and Barker Gerard, Petitioners-Appellants,
v.
H. Lee Murphy and Leslie Bayer, Respondents-Appellees)

Page 392

[Copyrighted Material Omitted]

Page 393

As Corrected.

Appeal from the Circuit Court of Kane County. No. 07-P-484. Honorable Joseph M. Grady, Judge, Presiding.

SYLLABUS

In a dispute arising from an incident in which one daughter's theft of a substantial amount of money from the estate of her mother led the mother's two other children to create a trust for their mother's estate that would prevent the daughter who was convicted of felony theft in Pennsylvania for taking from her mother's estate from inheriting from her mother, the trial court erred in denying the petition filed by the children of the felonious daughter to vacate the order that allowed the creation of the trust, since the grandchildren were not given notice of the motion to create the trust, even though they were beneficiaries of their grandmother's estate at the time the motion to create the trust to exclude their mother from inheriting was filed, and they were necessary parties pending a showing under the financial exploitation statute that the grandmother fell within the exception to the statute allowing the felonious child to inherit based on clear and convincing evidence that the mother, with knowledge of her daughter's conviction, wanted her to inherit; furthermore, the grandchildren were never found not to be necessary parties, and finally, the vacation order would return the cause to the status quo existing prior to the creation of the trust and allow the trial court to adjudicate the parties' rights as potential heirs or beneficiaries.

Christopher J. Berghoff, of Berghoff & Berghoff, of Chicago, for appellants.

Stephen M. Cooper, Peter M. Storm, and Philip J. Piscopo, all of Cooper, Storm & Piscopo, of Geneva, for appellees.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.

OPINION

Page 394

SCHOSTOK, J.

[¶1] On October 30, 2013, the trial court denied the petition of the petitioners, Christopher and Barker Gerard, to vacate an April 27, 2011, order that allowed the respondents, H. Lee Murphy and Leslie Bayer, to create a trust for the estate of their mother, Olga Atterbury Ostern. The petitioners appeal from this denial. We reverse and remand for additional proceedings.

[¶2] BACKGROUND

[¶3] This case involves the application of section 2-6.6 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/2-6.6 (West 2010)) (hereinafter referred to as the " financial exploitation statute" ). That section of the Probate Act provides:

" A person who is convicted of a violation of Section *** 17-56 *** of the Criminal Code of 1961 may not receive any property, benefit, or other interest by reason of the death of the victim of that offense, whether as heir, legatee, beneficiary, joint tenant, tenant by the entirety, survivor, appointee, or in any other capacity ***. The property, benefit, or other interest shall pass as if the person convicted of a violation of Section *** 17-56 *** of the Criminal Code of 1961 died before the decedent ***. Notwithstanding the foregoing, a person convicted of a violation of Section *** 17-56 *** of the Criminal Code of 1961 shall be entitled to receive property, a benefit, or an interest in any capacity and under any circumstances described in this Section if it is demonstrated by clear and convincing evidence that the victim of that offense knew of the conviction and subsequent to the conviction expressed or ratified his or her intent to transfer the property, benefit, or interest to the person convicted of a violation of Section *** 17-56 ***." 755 ILCS 5/2-6.6(a) (West 2010).

Section 17-56 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/17-56 (West 2010)) addresses financial exploitation of an elderly person and states:

" A person commits financial exploitation of an elderly person *** when he or she stands in a position of trust or confidence with the elderly person *** and he or she knowingly and by deception or intimidation obtains control over the property of an elderly person or a person with a disability or illegally uses the assets or resources of an elderly person or a person with a disability." Id.

[¶4] On December 6, 2007, the respondents, who are two of Olga's three children, were appointed guardians of Olga's person and estate. Olga was a disabled adult who suffered diminished capacity as a result of suffering a stroke. On April 27, 2011, the respondents, as guardians and pursuant to section 11a-18(a-5)(6) of the Probate Act (755 ILCS 5/11a-18(a-5)(6) (West 2010)), filed a motion to create a trust for Olga. In the ...


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